One evening, defendant boarded a bus that Hall was riding. He told her that
he had a knife and would hurt her if she did not get off the bus with him. She complied,
and the two went to a bar. After leaving the bar, they went to a number of different
convenience stores and tried to purchase beer. They then entered a motel, where Hall
complained that she was having trouble breathing. She asked the clerk at the motel to call
an ambulance, and defendant told the clerk not to call anyone. He then grabbed Hall by
the arm and dragged her out of the motel, pulling her hair and hitting her. He threatened
to stab and kill Hall if she did not go with him and dragged her across the street to an area
between two nearby houses. Meanwhile, the motel clerk called the police, who
responded and arrested defendant.

After his arrest, defendant made threats against Hall. While in jail, he
telephoned her and told her not to testify against him. He also wrote her a letter
containing the following statements:

"If you go to any court[,] I get 8 ½ years. I sure don't deserve that. You
need to let this go. Don't take this as a threat but there are people out to get
you now. I've told them not to but watch your back. When I'm let out they
will chill out."

In addition, two of defendant's friends told Hall that they had received
letters from defendant. One letter accused Hall of lying to the police and stated:

"If she does go lie and gets away with it she will be shot, so either
way she is through. As it is, as soon as some people find her she is going to
the hospital[;] she fucked with the wrong person this time. I'll kill her.

"* * * * *

"You can tell [Hall] what I said but don't let her get this letter. I
don't need more charges."

The other letter stated that defendant's court date was coming soon and that Hall "needs to
not show on the kidnap." Defendant asked the recipient to talk to Hall by calling her from
work or a payphone, "[j]ust not [from] your house."

Hall's name appeared on defendant's indictment as a witness before the
grand jury, and she also testified at defendant's trial. She testified at trial that she was
scared that people were out to get her and that she was frustrated and apprehensive about
having to testify. After Hall had finished testifying for the state, the deputy district
attorney asked the court if Hall could be excused. The court declined because defendant
indicated that he planned to call Hall as a defense witness.

Before closing arguments, defendant moved for a judgment of acquittal on
the witness tampering charge, contending that the state had not provided any evidence
that Hall had been legally summoned to testify. The trial court denied the motion. A jury
convicted defendant, and this appeal ensued.

On appeal, defendant renews his argument that he could not be convicted of
witness tampering because there was no evidence that Hall had been legally summoned to
testify. ORS 162.285(1)(b) provides:

"(1) A person commits the crime of tampering with a witness if:

"* * * * *

"(b) The person knowingly induces or attempts to induce a witness
to be absent from any official proceeding to which the person has been
legally summoned."

Defendant contends that he could not be convicted in the absence of evidence that Hall
was served with a subpoena or other legal process before defendant tried to induce her not
to testify and that the state presented no such evidence.

We turn to the state's argument that the jury could infer that Hall was legally
summoned to appear. The state points out that Hall testified before the grand jury, that
she testified at trial despite her stated concerns about her own safety, and that the trial
court did not excuse Hall after she testified for the prosecution. However, assuming that
a rational juror could conclude that Hall was at some point summoned and required to
appear as a witness, there is no evidence that Hall was summoned as a witness before
defendant's conduct occurred. Because the state did not meet its burden of demonstrating
that defendant tampered with the witness after she was summoned, his conviction for
tampering with a witness must be reversed.

"In a prosecution for an attempt, it is no defense that it was
impossible to commit the crime which was the object of the
attempt where the conduct engaged in by the actor would be a
crime if the circumstances were as the actor believed them to be."